March 20, 2007

In Support of Civil Unions

On Wednesday, March 21, the Human Services Committee of the Illinois House of Representatives will hold hearings on proposed Illinois House Bill 1826, which would legalize civil unions in Illinois. I strongly support this bill.

A central theme of American history has been our willingness to reexamine our preconceptions. As Justice Oliver Wendell Holmes once observed, “time has upset many fighting faiths.” Our tradition of reevaluating and reconsidering our conventions and beliefs, particularly when they may cut against individual dignity and freedom, is at the very core of the American character. It is through this process of open-minded, self-critical, and rigorous questioning that we have discerned our most fundamental truths.

A Justice of the Supreme Court once described the attitude of the founding generation toward African-Americans. Americans of the 18th century, he said, regarded African-Americans “as beings of an inferior order, and altogether unfit to associate with the white race.” The generation that drafted the Declaration of Independence generally accepted “that the negro might justly and lawfully be reduced to slavery for his benefit,” and this “opinion was at that time” almost “universal in the civilized portion of the white race.”

On another occasion, another Justice of the Supreme Court described the prevailing 19th-century attitude toward women: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. . . . This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things.”

Over the years, we have come deeply to regret and to reject such beliefs. We fought a terrible Civil War; bore witness to lynching, Jim Crow and racial segregation; reflected on the words and deeds of Susan B. Anthony, Rosa Parks, and Martin Luther King; and gradually worked our way through to a truer understanding of the American spirit. It took insight and no small amount of courage us to see beyond our most deeply-rooted cultural assumptions to forge new visions of freedom, equality, and justice without regard to race, religion, ethnic origin, gender, or disability.

We now stand on the verge of a similar transformation with regard to sexual orientation. All social transformations are challenging. We are currently in the process of reconceptualizing our individual, social, and political attitudes about matters that once seemed as self-evident to us as the racial inferiority of blacks seemed to 18th century Americans and the divine “functions of womanhood” seemed to Americans in the 19th century.

As the columnist George Will recently observed, most young Americans now see an individual’s sexual orientation as no more legally or morally relevant than whether one is left- or right-handed. Moreover, every national poll now shows that a substantial majority of Americans support civil unions. House Bill 1826 is the right proposal at the right time. It strikes a sensible balance between our national commitment to individual dignity, liberty, and equality, on the one hand, and our traditional respect for religious belief, on the other.

House Bill 1826 will not please everyone. Some people will object that the bill goes too far because it legitimates “immoral” relationships that are condemned by Scripture. Others will object that it does not go far enough because it fails to allow same-sex couples to marry and thus perpetuates “immoral” discrimination against individuals for no reason other than their sexual orientation.

House Bill 1826 is sound legislation precisely because it does not let the perfect be the enemy of the good. In a well-functioning democracy, individuals must strive to see the world through the eyes of others. We must seek common ground with those who see the world differently. We must find ways to preserve our own sense of fairness and justice while respecting the divergent views of others. House Bill 1826 exemplifies the spirit of principled compromise.

On the one hand, the bill fully respects the views of those who sincerely believe that “marriage” must be a relationship between a man and a woman and makes clear that religious denominations that oppose civil unions are not in any way required to recognize or solemnize such relationships. On the other hand, the bill grants same-sex couples who want to commit to long-term, stable relationships the same basic legal rights and responsibilities that Illinois law now grants to opposite-sex couples. This includes such fundamental matters as medical decision making, joint ownership of property, pension rights, worker’s compensation, health insurance, inheritance, domestic violence, and the care and protection of children.

The extension of such rights and responsibilities to committed same-sex couples is not only right as a matter of simple justice and human decency, it is also sound public policy. Ending racial segregation, granting women the right to vote, and prohibiting discrimination on the basis of race, religion, gender, ethnic origin, and disability were not only morally right, but also created a stronger, more efficient, more productive, and more stable nation. The same is true of House Bill 1826. Supporting the stability of families is, quite simply, good public policy.

The more difficult issue is that House Bill 1826 leaves same-sex couples in a position of second-class citizenship. Civil unions are not recognized as the legal equivalent of marriage for purposes of federal law and most states do not recognize the validity of civil unions even when they are lawful in the state in which they were created. This creates many complex uncertainties, but it is not within the power of Illinois to address those injustices. What Illinois can do is to treat its own citizens with respect.

The other objection to House Bill 1826 is, of course, that it denies same-sex couples the dignity of the word “marriage.” It is easy to dismiss this as merely symbolic. But symbols matter. If African-American or Jewish couples were relegated to “civil unions” and could not legally call their unions “marriage,” we would readily see the insult and injustice. “A rose by any other name” has its limits. Nonetheless, this is a period of transition, and transition demands compromise. What matters most at the moment is that Illinois extend to same-sex couples the basic legal rights and responsibilities it grants opposite-sex couples. And this House Bill 1826 achieves.

It is time for us, in Lincoln’s words, to reach for “the better angels of our nature.” As with our predecessors who wrestled with the issues of racial and gender injustice, our response to the issue of sexual orientation will be judged by later generations. Let us make them proud.

Comments

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Will House Bill 1826 allow civil unions for opposite sex couples? There are any number of reasons why opposite sex couples might not want all the rights (and legal entanglements) that marriage allows and might want to opt for a civil union.

Does House Bill 1826 discriminate against opposite sex couples who wish a civil union?

As a strict church state separatist, I've come to the conclusion that the state should not tell the church who can marry and the church should not tell the state who can make medical decisions for another, own property jointly, inherit in the absence of a will, etc. Marriage in a religious ceremony should be one path to becoming a legally recognized couple, but it need not be the only path.

The legislature here in my own state of Indiana seems to be consumed with protecting marriage. If civil unions were indeed recognized by our neighbors to the west and plagues and disasters do not follow, perhaps we'll learn from your example. I suspect, however, that supporters of civil unions here may need to abandon even that term and debate the issues such as consent to medical treatment one by one.

Would the better solution for all be if we did away with all marriage and civil union rights altogether? There are plenty of critiques of marriage insofar as it helps create a class of dependent people, that have almost always been women. Perhaps without the shelter of marriage women will become even more independent and active in the economy.

Perhaps what equality demands isn't equal access to marriage rights, but the elimination of those rights altogether. It would be a boon to family lawyers, that is for sure. People would have to actually have marriage contracts that spell out what happens on death or divorce, should they choose to cohabitate and have kids and financial independece for all individuals would become a priority.

Perhaps the time for the legal institution of marriage is at an end, because the inequalities that are derived from and perpetuated by the institution of marriage won't cease to exist, mainly to the detriment of women, just because same sex couples are allowe dto enter into it.

Mr Cook, you make an excellent point. Perhaps we shouldn't waste time on symbolic issues and simply address the pragmatic issues, such as medical decisions. Surely even the most hate-filled fundamentalist would have to concede that the most appropriate person to make end-of-life decisions for a comatose patient is the person most intimate with the patient. If we work from this angle, we can address the most important issues, and eventually the legal distinction between heterosexual couples and homosexual couples will be so tiny as to be easily swept away with new all-inclusive language.

As long as we live in a world that recognizes marriage for heterosexual couples and bases legal benefits and privileges on that status, marriage matters. Therefore, right to marry for homosexual couples is of equal practical and symbolic significance, all issues about the wisdom or necessity of the institution of marriage aside.

Achieving a sound compromise in “a period of transition” is important, but the transition ultimately has to achieve its end goal, the recognition of “marriage” for same-sex couples with all attendant legal rights and obligations. This is where the prospects of a compromise are regrettably bleak. From what appears from the current tone of the discourse, religious objections to gay marriage are unremittingly firm and uncompromising. For those who espouse an anti-gay-marriage view, there can be no compromise when it comes to the institution of marriage. On the other hand, are we as a society going to make same-sex couples wait until that part of the population change their mind? After years of discrimination and waiting, this may mean many more generations of gay couples will have their hopes dashed by the intolerance of the majority.

The Illinois legislature should pass House Bill 1826 but the ultimate battle will be for the recognition of the homosexual couples’ right to marry. If gays have the same right to “make choices central to personal dignity and autonomy” and to “define one’s concept of existence, of meaning, or the universe, and of the mystery of human life” the same way as heterosexuals do when forming intimate relationships, as the Court said in Lawrence, why can’t they enter into a union that is called and is “marriage?” Religious precepts might have prompted or defined the institution of marriage, but it is now the state that creates and recognizes civil marriage. Civil marriage is thus a secular institution and the religious beliefs of some should not be an impediment to the rights of others to benefit from it. The right to marry and to decide whom to marry is a fundamental right and, short of a constitutional amendment, it is not even for the majority to take that right away. Let’s hope that state legislatures will recognize as much and institutionalize same-sex marriage. If they don’t, the courts must act to protect the right of homosexual couples to marry from the prejudice and intransigence of the majority.

Mr. lav, I believe that you are arguing the case for symbolic recognition of gay marriage; I suggest that you are reaching beyond what is politically possible. It is politically possible to take a step-by-step approach, starting with the easiest steps and proceeding to the more difficult ones. If we achieve a state in which there are no legal privileges enjoyed by heterosexual couples that are not also enjoyed by homosexual couples, yet there is no symbolic recognition of the word 'marriage', then what does it matter? Do you want society to bless homosexual couples? There are large segments of society that will never consent to this, so there's no point in demanding the impossible.

I agree with the step-by-step approach and that starting with a point of compromise is the right way to go. In the end, however, the difficult question will have to be faced. If we reach a state where homosexual couples enjoy exactly the same rights as heterosexuals, then that in itself may be a good case for the symbolic recognition of gay marriage. If all "substantive" rationales against gay marriage have been done away with(protection of welfare of children, stability of family, etc.) to grant same-sex couples a full spectrum of marital rights, what would be the reason not to go all the way and call the thing by its name? As is clear from Prof. Stone's discussion, symbolism does matter and refusal to recognize two identical phenomena (heterosexual marriage and gay marriage) as legally equal is discriminatory and conveys a message of inferiority. Because I agree that a large segment of the society will not countenance gay marriage and political insitutions will likely yield to majoritarian pressure, I believe that the courts will have a critical role to play. In the meantime, trying to change public perceptions by compromises like House Bill 1286 is a good idea.

Mr. lav, I suspect that you are taking a legal approach to what is ultimately a political problem -- and your suggestion that the courts will provide the ultimate resolution buttresses my hunch. The art of diplomacy (and, to a lesser extent, lawmaking) is a matter of coming up with wordings that are acceptable to all sides. That word "marriage" is a political hot button. I suspect that you want to get it for exactly the same reasons that the religious right doesn't want you to get it. Since they outnumber you, you are guaranteed to lose that battle.

I may be way off the mark here in my reading of your comments, but I sense that you want society to give its imprimatur to gay marriage. The problem is that a sizable minority of American society *doesn't* approve of gay marriage, and I very much doubt that these people will change. I sense that you want the courts to cram it down their throats and force them to accept gay marriage. Whether or not you succeed, it will create political discord that will be easy for demagogues to milk for decades to come.

There is no question in my mind that, in the long run, history is on our side here. Just as other minorities eventually got their freedoms (and this is a major point of Mr. Stone's essay) , so too is it inevitable that gays will get their freedoms, too. And I suspect that it will come fairly quickly once people get used to the idea of gays being out in the open.

Ultimately, my points are tactical, not strategic. I recommend that we whittle away at the pragmatic issues, one by one. That creates the momentum for eventual full legal recognition. Until then, let's not give the bigots the ammunition they need to whip up the masses. Let's leave the hot button word "marriage" out of the discussion. Once all the realities are in place, then that last step will fall into our hands like ripe fruit.

Freedom of relgion means that the state has no right to compel churches to endorse state-sanctioned marriages.

On the other hand, principles of equality would require that homosexuals be entitled to sign a document giving the same legal rights as married couples enjoy (be it tax issues, child custody, etc).

The question is whether they should be entitled to call such unions 'marriage'. This is interesting, as it raises the question of who owns the rights to the word 'marriage'. Is it the churches, from which the word derives originally? Or is it the state? If the former, what's to stop a breakaway group of any of the existing religions, or a new religious group, starting a new church which does bestow the word 'marriage' on homosexual partnerships.

If it is the state, on the other hand, should the state be permitted to deny the name to gay couples, if we otherwise find discrimination on sexual orientation grounds unacceptable?

It is quite despicable the way gay activists have "pimped" the Civil Rights Movement to advance homosexual marriage and other so-called rights issues. They are the only group that uses the centuries-long degradation and discrimination of a third party to advance its cause. One wonders what examples gay lobbyists would use if they didn't have African-American suffering to point to. Yet, one never sees gay support when Blacks experience modern-day discrimination. Where was gay support during the Jena 6 or Don Imus debacles? They are users, plain and simple, and it is an insult to the legacy of 300+ years of suffering in America by our ancestors.

While I support and advocate for advancement in equality and civil rights for homosexuals, I think it is also important to understand that House Bill 1826 will also be incredibly beneficial for senior citizens and institutionalized persons. Currently, widows and widowers can lose their pensions and institutionalized persons can lose their Medicare if they choose to marry and join incomes. If they cannot marry, they cannot share rooms at convalescant homes or make important medical decisions for their partners. However, under the Civil Unions bill, these different gendered, long term, committed couples can gain these legal rights without compromising their own medical treatment and possibly their family's financial stability. This bill plays a huge role in protecting couples of all types and should be seen as a positive step towards a more compassionate and humanitarian country. And to Ms. Richardson, even Coretta Scott King herself said that Dr. Martin Luther King Jr. would have used the struggles of African American people to fight for gay rights. In his letter from Birmingham Jail he likened the struggle of his people to that of the Jews that suffered in the Holocaust and offered that he would have fought for them as well, as they are his brothers as much as other African Americans are. People that suffer injustice and thus believe in and fight for civil rights should always support one another and find a common ground instead of using their struggle as a means to keep others away. Injustice for any human being is injustice, and therefore intolerable, inexcusable and worth fighting for.